AB-1757: New California Bill Would Increase Website Accessibility Lawsuits Across U.S.
California Bill AB-1757 was originally about “court consolidation”. But then it was amended and now it’s about “Accessibility: internet websites.”
So even though it’s amended, it’s basically a new bill.
And it’s a bad one.
Not because an actual, explicit (state) law that tells us exactly what is necessary for digital accessibility compliance is unwanted, but because this bill, as written, would only inflame serial digital accessibility litigation that’s already been out of control for years.
The proposed legislation is too broad and too sweeping. It contains none of the details or nuance a digital accessibility law or regulation would need to be effective.
Let’s quickly summarize the key takeaways from AB-1757:
- Applies to websites, mobile apps, and potentially more digital assets
- Requires WCAG 2.1 AA conformance
- Website, app, etc. owner/operators can be sued
- So can developers, designers, digital asset sellers, etc.
- Entities from other states (and potentially countries) could be sued
Also, this law would be difficult to defend against.
As it stands, the technical standard incorporated into the bill is WCAG 2.1 AA so plaintiffs lawyers can construe any technical deviation, however minor, into a plausible means for bringing a claim for discrimination so long as their client can make one of the following two arguments.
From 55.565. (b):
To be entitled to statutory damages for internet website inaccessibility, a plaintiff must prove one of the following:
(1) That the plaintiff personally encountered a barrier that caused the plaintiff to experience a difference in their ability to access or use the website as compared to other users such that the plaintiff was unable to acquire the same information, engage in the same interactions, or enjoy the same services with substantially equivalent ease of use, or to have the same level of privacy and independence as other users who are not disabled.
(2) That the plaintiff was deterred from accessing all or part of the website or the content of the website because of the website’s failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity’s goods and services offered to the public.
Note how both of those standards for the plaintiff are subjective.
On section 1, how can we disprove what someone claims to have experienced?
Similarly, for section 2, how can we disprove whether or not someone was deterred?
Compare this to an objective standard such as whether or not a website provided meaningful access.
Here we’re examining the website itself — whether it was generally accessible, not someone’s experience while visiting the website.
While WCAG 2.1 AA conformance is fairly objective on its face (some success criteria can be argued), not meeting even one of the 50 success criteria means the plaintiff can successfully claim either 1 or 2 from above.
Who Can Be Sued
It’s not just the owner/operator of a website or mobile app who can be sued.
It’s also the people who designed the website, who developed the app, who built the platform, who created the plugin, etc.
Here’s more language from the bill:
55.566. (a) It is unlawful for any resource service provider, in exchange for money or any other form of remuneration, to intentionally or knowingly construct, license, distribute, or maintain for online use, an internet website that fails to comply with the internet website-related accessibility standard.
(b) The following parties may bring a civil action pursuant to this subdivision:
(1) (A) A person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website…
(2) (A) A person or entity that pays, compensates, or contracts with, the resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication…
Per section (f)(4), a resource service provider is:
a person or entity that, in exchange for money or any other form of remuneration, constructs, licenses, distributes, or maintains for online use any internet website or resource to be used within or in conjunction with an internet website.
Note the selection, “maintains for online use any internet website or resource to be used within or in conjunction with an internet website.”
A lot (emphasis on A Lot) of entities potentially fall under that definition.
- Plugin developers
- Theme developers
- Web design agencies
- Website builder platforms
- Landing page providers
And the list goes on.
And they can be sued not only by the plaintiff but also by the website owner/operators.
Something else that stuck out to me was this definition:
55.565. (e)(2) “Internet website” includes all internet web-based technology, including, but not limited to, a mobile application or app that can be accessed by a mobile device.
Mobile apps might be native mobile apps (not web-based) or hybrid apps (mix of native and web).
So would AB-1757 not apply to native mobile apps accessed from a phone?
The Good News
Per Seyfarth Shaw’s blog post, this bill is at least 3 months away from potentially being approved.
Stated another way, it’s not law yet and it may never be.
That said, the very fact that it’s even a possibility, however likely or unlikely, should spur anyone who reads this to embrace accessibility wholesale.
It’s not like there hasn’t been rampant serial website accessibility litigation for over 5 years, anyway. But if you needed a push to start learning about the Web Content Accessibility Guidelines (WCAG), the California legislature is here to help.
Also, even if AB-1757 doesn’t cross the finish line, another law or regulation mandating digital accessibility is soon to come across your desk.
I highly recommend everyone to take accessibility seriously starting now.
There is so much upside to making your digital assets accessible including ensuring access and all sorts of business advantages.
Also, you’ll be virtually pre-compliant with any future laws.